Aboriginal and Torres Strait Islander Peoples

The following content draws upon, in part, the Joint Australian NGO Coalition's fact sheets prepared for the Universal Periodic Review.

In all social indicators, Aboriginal and Torres Strait Islander peoples rate as among the most disadvantaged peoples in Australia. Aboriginal and Torres Strait Islander peoples rate far worse than non-Aboriginal and Torres Strait Islander peoples in education, employment, health, standard of living and incidence of family violence. They are also grossly over-represented in the child protection and criminal justice systems. The disparity is so great that the life expectancy of Aboriginal and Torres Strait Islander peoples is 12 years less for males and 10 years less for females than the corresponding rates for their non-Aboriginal and Torres Strait Islander counterparts.

The Australian Government's response to the levels of disadvantage faced by Aboriginal and Torres Strait Islander peoples has been the "Closing the Gap" strategy. Due to lack of consultation with Aboriginal and Torres Strait Islander communities, ill-conceived program design and ineffective execution, the strategy has resulted in little change on the ground for Aboriginal and Torres Strait Islander peoples.

Northern Territory Emergency Response

The Northern Territory Emergency Response (NTER) was introduced to address reported child abuse in the Northern Territory (NT), yet actively discriminates against Aboriginal and Torres Strait Islander peoples and involves the suspension of the Racial Discrimination Act 1975 (Cth). The NTER is comprised of a comprehensive suite of measures of extraordinary scope and gravity that impact upon almost every aspect of the lives of Aboriginal and Torres Strait Islander peoples in the NT. The measures range from those that impact upon Aboriginal and Torres Strait Islander peoples individually, including income quarantining, liquor restrictions and other discriminatory policies that bring Aboriginal and Torres Strait Islander peoples into contact with the criminal justice system, control of Aboriginal and Torres Strait Islander organisations, assets and land by government employees, and the undermining of land rights and the rights of traditional owners. The NTER violates the rights of Aboriginal and Torres Strait Islander peoples to be free from racial discrimination and does not allow collective self-determination, social security, freedom, dignity, individual autonomy in regards to family and other matters, privacy, land tenure and property, due process and cultural integrity. The NTER applies across whole Aboriginal communities despite individual behaviour and therefore racially vilifies and stigmatises Aboriginal and Torres Strait Islander peoples. Despite recent amendments to widen the application of compulsory welfare quarantining to non-Aboriginal and Torres Strait Islander communities in the NT, the NTER still disproportionately affects Aboriginal and Torres Strait Islander peoples due to the high population of Aboriginal peoples in the NT and high incidence of welfare dependence. The discrimination evident in the NTER forms part of a wider framework of systemic racism against Aboriginal and Torres Strait Islander peoples.

Overrepresentation in the criminal justice system

Aboriginal and Torres Strait Islander peoples in Australia are substantially over-represented in the criminal justice system. This is caused by an interplay of complex historical and contemporary factors including dispossession of land, structural disadvantage, systemic racism, intergenerational poverty and trauma, over-policing, substance misuse and mental illness, tough-on-crime policies and the chronic under-funding of Aboriginal and Torres Strait Islander legal and interpreter services.

Conditions of incarceration

Many Australian detention facilities, particularly in regional and remote areas, are dirty, overcrowded, lack air-conditioning, do not provide Aboriginal and Torres Strait Islander peoples in custody with access to culturally appropriate healing or rehabilitation programs, and place juveniles at risk of abuse by failing to always separate them from adults whilst in custody. Many detained persons receive inadequate medical and mental health care, which contributes to the ongoing incidence of deaths in custody. Prisoner transportation is also concerning because of the geographical expanse of Australia and remoteness of many Aboriginal and Torres Strait Islander communities. Detained persons are transported over hundreds of kilometres, amidst high temperatures, in vehicles that are not appropriately air-conditioned or monitored. Of all states and territories, only Western Australia has an Inspector of Custodial Services to provide an independent, expert and fair inspection service that gives up-to-date reports and advice about custodial facilities and services.

Access to justice

Aboriginal and Torres Strait Islander Legal Services (ATSILS) are the preferred and sometimes only legal aid option for many Aboriginal and Torres Strait Islander peoples, many of whom experience language and cultural barriers, low levels of numeracy and literacy and distrust of the justice system. Despite Aboriginal and Torres Strait Islander incarceration rates increasing at an alarming rate over the past decade and the subsequent increase in demand for the ATSILS services, the amount of real funding provided has been declining. Aboriginal and Torres Strait Islander women and children remain chronically disadvantaged in terms of their access to justice, especially in regards to situations of family violence. Family Violence Prevention Legal Services (FVPLS) are legal aid providers specialising in family violence mainly in regional and remote areas because of a lack of funding to service urban areas where large proportions of Aboriginal and Torres Strait Islander peoples reside. The high incidence of family violence against Aboriginal and Torres Strait Islander women combined means that often the FVPLS are the only culturally appropriate legal assistance option available to Aboriginal and Torres Strait Islander women.

Stolen Generations and Stolen Wages

The forced removal of Aboriginal and Torres Strait Islander children from their families was official government policy from 1909 to 1969. Once in care, high proportions were psychologically, physically and sexually abused. Consequently, substance abuse, depression, anxiety, post traumatic stress and suicide are commonplace. The impact of this trauma has also passed on to successive generations with members of the Stolen Generations having few past role models of parenting to draw on which can often result in a tragic cycle whereby their children are also removed by child protection agencies. From 1900 to the 1980s, many Australian State and Territory governments withheld wages and other payments from Aboriginal and Torres Strait Islander peoples under their care and protection. This has had economic, social, cultural, civil, political and historical implications for Aboriginal and Torres Strait Islander peoples and is directly related to the disadvantage and poverty experienced today. The Federal Government has refused to compensate the Stolen Generations and their families and has failed to establish a national scheme for the repayment of Stolen Wages.

Child abuse, neglect and poverty

Aboriginal and Torres Strait Islander children are more than five times more likely to be the subject of child protection substantiations than non- Aboriginal and Torres Strait Islander children, which often leads to juvenile and adult involvement in the criminal justice system. It is widely accepted that there is a close link between child abuse and neglect and the broader issues of poverty, in all indicators of which Aboriginal and Torres Strait Islander peoples rate as the most disadvantaged peoples in Australia.

Declaration on the Rights of Indigenous Peoples

Aboriginal and Torres Strait Islander peoples have and continue to suffer:

systemic discrimination at all levels;

land dispossession with little chance of achieving effective redress;

less access to housing, education, employment and health care; and

limited opportunities for self-determination, participation in decision-making in matters directly affecting their communities, and maintenance of their distinct political, legal, economic, social and cultural institutions.

Native title land

The strict requirement of the Native Title Act 1993 (Cth) of continuous connection with the land since colonisation is incompatible with the UN Declaration on the Rights of Indigenous Peoples, whilst other discriminatory aspects of the native title system remain in place. For example, reforms to the Native Title Act create legal certainty for governments and third parties at the expense of native title, but fail to deliver compensation for the wrongful extinguishment of native title to Aboriginal and Torres Strait Islander peoples. Australian law does not recognise traditional owner groups who have revitalised their traditions in recent years as native title holders, and Australian laws regularly presume a distinction between "Aboriginal cultural heritage" and the rights to take natural resources. Traditional owners understand "culture" to encompass much more than what is found in current legal definitions, and there is an essential link between the exercise of Aboriginal and Torres Strait Islander culture and self-determination.

What the UN Human Rights Council recommended in the Universal Periodic Review

In January 2011 Australia was reviewed by the UN Human Rights Council during the Universal Periodic Review (or UPR) (a process whereby the human rights performance of all UN member states is reviewed by other states). In June 2011 Australia provided its response to the 145 recommendations made by the Human Rights Council.

The Government has accepted over 90 per cent of the recommendations and has committed to incorporating the recommendations it has accepted into the National Human Rights Action Plan.

In relation to Aboriginal and Torres Strait islander peoples, the Human Rights Council made a number of relevant recommendations. Australia has responded to these recommendations as set out in the following table.

The Australian Government will continue to adequately fund the Australian Human Rights Commission. Australia recently announced funding for a standalone Race Discrimination Commissioner, in addition to the new position of an Age Discrimination Commissioner.

Strengthen Australia’s efforts to promote equality, non-discrimination and tolerance through the monitoring of racially motivated violence, and include human rights education in school and university curriculum (recommendation 86.57).

Accepted

The Australian Government will continue to take steps to monitor racial violence. Discussions with States and Territories regarding human rights education will inform the development of the Australian Curriculum.

Take measures to end racial discrimination and protect the rights of all citizens including indigenous communities (recommendations 86.59 and 86.60).

Accepted

Australia’s new multicultural policy includes a National Anti-Racism Partnership and Strategy, establishment of the Australian Multicultural Council, a ‘multicultural ambassadors’ program and a Multicultural Youth Sports Partnership Program.

Improve communication between Aboriginal and Torres Strait Islanders communities and law enforcement officials and enhance the human rights training of those officials (86.95 and 86.96).

Accepted

The Australian Federal Police and State and Territory police have a range of cultural awareness and human rights training in place. Additional human rights training will be delivered throughout the federal public sector including the AFP from 2011.

Take regular measures to prevent hate speech, including prompt legal action against those who incite discrimination or violence motivated by racial, ethnic or religious reasons (recommendation 86.98).

Accepted

The Australian Government will continue to administer a strong framework for the prevention of hate speech and incitement to violence.

Carry out a comprehensive assessment of the effectiveness of actions and strategies aimed at improving socio-economic conditions of indigenous peoples in consultation with the communities concerned, and if necessary correct these actions (recommendation 86.118).

Accepted

The Council of Australian Governments Reform Council will provide a comprehensive report each year on progress against relevant targets.

Reduce family violence and violence against women, especially within indigenous communities (recommendations 86.72 and 86.80).

Accepted

The National Plan for Violence Against Women and their Children is a 12-year agreement between Australian, State and Territory governments, including an outcome that ‘Indigenous Communities are Strengthened’.

Implement specific steps to combat the factors leading to the overrepresentation of indigenous persons in places of detention and the high level of deaths of indigenous persons in places of detention (recommendations 86.90 and 86.93).

Accepted

The Australian Government will continue to address Indigenous incarceration and deaths in custody, including by funding prevention, diversion and rehabilitation programs. States and Territories will continue to implement programs aimed at preventing Indigenous deaths in custody.

Introduce a requirement that all deaths in custody be reviewed and investigated by independent bodies tasked with considering prevention of deaths and implement the recommendations of Coronial and other investigations and enquiries (recommendation 86.91).

Accepted

All deaths in custody are independently investigated by State and Territory Coroners courts and recommendations are considered by State and Territory governments. Australia has a National Deaths in Custody Program to monitor all deaths.

Improve harsh conditions of custody (recommendation 86.130).

Accepted

Australia’s response was limited to immigration detention.

Examine possibilities to increase the use of non-custodial measures (recommendation 86.94).

Accepted

Imprisonment will continue to be viewed as a sentence of last resort in Australian courts. A range of alternatives is available, including home-detention orders and other community-based orders.

The Australian Government has increased funding by 14.5% for Indigenous-specific legal services over 2010-14. It will continue to work with States and Territories to build the capacity of Indigenous language interpreter services.

The Australian Government will continue to take measures to ensure adequate support services are delivered to people in remote and rural areas.

Continue to implement efforts to recognise the rights of Aboriginal and Torres Strait Islanders under the Australian Constitution with their consultation and under a framework consistent with the UN Declaration on the Rights of Indigenous Peoples (recommendations 86.104, 86.105 and 86.107).

Accepted

The Australian Government is committed to pursuing recognition of Indigenous peoples in the Australian Constitution and has appointed an Expert Panel to develop options and lead a wide-ranging national public consultation and engagement program.

Include recognition and adequate protection of the culture, values and spiritual and religious practices of indigenous peoples in Australia’s national norms (recommendation 86.108).

Accepted

Where appropriate in law and in policy, the Australian Government will continue to recognise and protect the culture and heritage of Indigenous peoples.

Strengthen efforts and take effective measures to ensure enjoyment of all rights for indigenous people, including participation in decision-making bodies at all levels (recommendation 86.110).

Accepted

The National Congress of Australia’s First Peoples will provide a central mechanism with which government, the corporate and community sectors can engage and partner on reform initiatives.

Ensure Aboriginal and Torres Strait Islanders participate in any process or decision-making that may affect their interests, including legislation (recommendations 86.109 and 86.111).

Accepted

The Australian Government recognises the importance of engaging in good faith consultation with Indigenous peoples in relation to decisions that affect them. No legislative barriers to consultation have been identified.

Fully implement the Racial Discrimination Act and the revision of federal laws to be compatible with the United Nations Declaration on the Rights of Indigenous Peoples (recommendation 86.24).

Accepted-in-part

The Racial Discrimination Act 1975 has been fully reinstated in relation to the Northern Territory Emergency Response as of 31 December 2010.

The Australian Government supports promotion of and respect for the principles in the Declaration on the Rights of Indigenous Peoples, and considers that current federal laws are consistent with the spirit of the Declaration.

Implement the recommendations made by the UN Special Rapporteur on the rights of indigenous people after his visit in 2009 (recommendation 86.37).

Accepted-in-part

The Australian Government has already implemented many recommendations of the Special Rapporteur, including fully reinstating the Racial Discrimination Act 1975 in relation to the Northern Territory Emergency Response.

Reform the Native Title Act 1993, amending strict requirements which can prevent the Aboriginal and Torres Strait Islander peoples from exercising the right to access and control their traditional lands and take part in cultural life (recommendation 86.102).

Accepted-in-part

The Australian Government continually reviews the operation of the native title system through practical, considered and targeted reforms. Legislation provides for Indigenous Australians to access, and to perform cultural activities on, their traditional lands through statutory regimes and cultural heritage laws.

Institute a formal reconciliation process leading to an agreement with Aboriginal and Torres Strait Islander people (recommendation 86.103).

Accepted-in-part

The Australian Government is committed to the process of reconciliation between Indigenous and other Australians, but does not intend to enter into a formal agreement.

Revise the Constitution, legislation, public policies and programmes under a human rights based framework implementing the UN Declaration on the Rights of Indigenous Peoples (recommendation 86.106).

Accepted-in-part

The Australian Government supports promotion of and respect for the principles in the Declaration. The Australian Government has committed funding in support of the establishment and early operation of the National Congress of Australia’s First Peoples.

Establish a National Compensation Tribunal, as recommended in the “Bringing Them Home” report, to provide compensation to Aboriginal and Torres Strait Islander people that are negatively affected by the assimilation policy, particularly as it applies to children unfairly removed from their families and the parents of those children (recommendation 86.97).

Rejected

In February 2008, the Australian Government offered the National Apology in recognition of the grief and suffering inflicted on Stolen Generations. The Australian Government will continue to work in partnership to address the immediate and practical needs of the Stolen Generations. Some States have introduced compensation schemes for children abused in state care or removed from their families.